Lesbian Mothers in Louisiana

Yesterday I wrote about how courts are sometimes more inclined to respond to the individual equity claims of lesbian families than legislatures might be. But alas, the key word there is “sometimes.” Courts are not always affirming. It’s probably not surprising that this seems to be particularly true when the challenge to a lesbian family comes from within that family.

There is yet another case that I am sorry to say is an of a lesbian refusing to recognize the relationship between her former partner and their child. (I’m sorry to say that I’ve commented on many similar cases in the past year-and-a-half. Here’s one, and many of them are collected under the tag “second-parent.) This case was brought in Lousiana, and given the response of Louisiana in the birth certificate case, the opinion probably shouldn’t be surprising.

I cannot link you to the actual opinion, which is as yet unpublished. The case is Black v. Simms, published by the Court of Appeal of Louisiana, Third Circuit on June 10.

Kimberlee Black and Kimberly Simms were a lesbian couple in Shreveport, Louisiana. In 2000 Simms gave birth to a daughter ( Braelyn). In 2002 Black gave birth to a son (Eli). Both children were concieved through donor insemination, using the same donor. Louisiana recognizes each woman as the legal parent of the child she gave birth to, but it does not recognize any legal relationship between the child and the partner of the woman who gave birth.

One way to gain legal recognition in this situation is to complete a second-parent adoption (that’s discussed in my last post.) But Louisiana does not allow second-parent adoptions and, as the birth certificate case demonstrates, is even reluctant to recognize out-of-state second-parent adoptions. In any event, neither woman here completed a second-parent adoption.

Simms and Black lived together with both children until 2004. At that point Simms and their daughter, Braelyn, moved out. Some time after that, Simms and Braelyn ended up moving in with Black and Black’s parents. Black’s parents played a significant role in the lives of both children until Simms moved out again in 2006. Very shortly after that, Simms cut-off the Blacks’ access to Braelyn.

The court’s opinion clearly illustrates the importance of legal recognition as a parent. Because Simms is a parent and Black is not, Black must make an extraordinary showing of harm to Braelyn in order to be able to even visit with the child. This is necessary in order to preserve Simms’ parental rights. Black has no comparable rights, since she is not a parent. Were Black a parent, her right to continue contact with Braelyn would be assumed. Because she is not, she bears a heavy burden of proof.

The court rejects Black’s argument that she should be entitled to recogntion of some sort because of her relationship with the child. While the opinion professes neutrality (a heterosexual couple would be treated seriously) the court ignores the effect of the marital presumption: If a heterosexual couple is married and the woman gives birth to the child, her husband is legally recognized as the father of a child. Thus, while it might be true that an unmarried heterosexual couple in Louisiana would be treated as Black and Simms are, that couple could choose to marry and ensure legal status for both parents. In this regard, you could see this opinion as evidence of the superior rights of married as opposed to unmarried parents.

Even given the standard imposed on Black–that she must show substantial harm to Braelyn, you might think a court would rule in her favor. After all, Simms has deprived Braelyn not only of contact with Black (Braelyn’s other parent), but also of contact with her brother (Eli) and with the surviving grandparent. Yet the court is unwilling to accord this deprivation the weight they would, I strongly suspect, accord a similiar deprivation in the context of a more “traditional” family.

One response to “Lesbian Mothers in Louisiana”

This is completely unfair to all the people Braelyn considered her family for six years, but most importantly to Braelyn. Her biological brother Eli (now 7 years of age) has been deprived of seeing “Sissy” for the past 3 years. Braelyn is kept alive in his heart by their mom Kim (Black). Unfortunately, her birth mother carries deep scars from her childhood which are obviously enabling her to break ties with anyone at a moments notice without any regard to consequences that will inevitably come to her child. She has always and likely will always pack up and move on anytime a situation does not suit her any longer. When adults enter into a commitment as serious as creating a child together there must be a tremendous level of trust. In this case there was huge trust between these two women. They had no intentions of separating when they were inseminated with Braelyn in 1999 nor when they were inseminated with Eli in 2001. These children are related by love and by blood yet the anger of the eldest’s birth mother has torn them apart. We all realize that Louisiana is more than delinquent in protecting their own, therefore it isn’t surprising that they have allowed this to happen to this family. But who fights for the siblings? Black has attempted every means available to her and spent her life savings and then some trying to have reasonable visitation with Braelyn, not just for her sake but for the sake of the two children who were extremely close and were cruelly and abruptly separated. Who holds people accountable for entering into comitments such as these? How was it so easy for Simms to abandon her second child, Eli? Just as Black wants to be a part of Braelyn’s life, so should Simms be responsible to Eli. Not only should Black be granted visitation, she should be obligated to help raise both children she promised to raise. I was married in Louisiana for nine years and had three children in that marriage. If my ex husband just decided he didnt want to help me raise the children he helped create, the state would see to it that he did. he has an obligation to all three children. Black and Simms are no different. They entered into an agreement to conceive and raise to biologically related children. Neither of them should be allowed to bail on either of the kids they brought into the world together. Ludicrous. But it is Louisiana.

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About the Blog

Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.